LASHANN DEARCY HALL, District Judge.
Ramon Delarosa petitions pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus to vacate his conviction. (Habeas Petition ("Pet."), ECF No. 1.) Petitioner's claims arise from a judgment of conviction entered on March 17, 2011, in New York Supreme Court, Queens County, upon his guilty plea to a charge of assault in the first degree. (Id. at 1.)
Petitioner and his brother were day laborers. (Resp't's Mem. Law Opp'n Pet. Writ Habeas Corpus ("Resp't's Mem.") at 2, ECF No. 7-1.) On December 16, 2009, Petitioner and his brother solicited a potential employer for a job that included, among other things, removing construction debris with the use of Petitioner's van. (Id.) As the men were discussing the details of the job assignment, James Gray approached and told the potential employer to hire him instead because he had a larger van. (Id.) Petitioner and Gray began to argue. (Id.) Petitioner then retrieved a three-foot-long level from his van and struck Gray in the head. (Id.) Gray suffered fractures to the right eye socket, loss of vision in one eye, cerebral bleeding, and a concussion. (Id.) Petitioner was charged with assault in the first degree, assault in the second degree, and criminal possession of a weapon in the first degree. (Id.)
A plea hearing was held on January 20, 2011. (Jan. 20, 2011 Plea Hr'g Tr., ECF No. 8-1.)
Prior to sentencing, Petitioner moved to withdraw his guilty plea, arguing that his prior counsel was ineffective for failing to advise him concerning the defense of justification. (R. 1-8.)
Mr. Sidoti also testified. According to Mr. Sidoti, Petitioner had indicated he understood the consequences of entering a plea of guilty and understood the court's questions, "or expressed to [Mr. Sidoti] that he did." (Id. at 16-17.) Mr. Sidoti, however, "believed Petitioner was just uncomfortable with spending more time in prison." (Id. at 15.) Mr. Sidoti also testified that during a recess of the plea proceedings, he tried to further convince Petitioner to plead guilty, and indicated to Petitioner that "if he didn't go through with [the plea], it was such a risk that [Petitioner] was looking at significantly more time in jail." (Id. at 19.)
The court denied Petitioner's motion and determined that although Petitioner was reluctant to plead guilty, Petitioner "certainly had enough time to consider his options." (Mar. 17, 2011 Sentencing Hr'g Tr. 2-3, ECF No. 8-1.) The court imposed a five-year prison sentence to be followed by a two-and-a-half-year term of post-release supervision. (Id. at 4.)
Petitioner appealed his conviction to the Appellate Division, Second Department, arguing that his guilty plea was not knowing, voluntary, and intelligent because the trial court did not make an inquiry as to a justification defense. (R. 14-29.) On March 27, 2013, the Appellate Division affirmed Petitioner's conviction, finding the claim "unpreserved for appellate review, as the [petitioner] did not raise this specific ground in his motion to withdraw his plea." People v. Delarosa, 960 N.Y.S.2d 915, 915 (App. Div. 2013). The Appellate Division continued, "inasmuch as [Petitioner's] recitation of the facts underlying the crime to which he pleaded guilty did not cast significant doubt upon his guilt or otherwise call into the question the voluntariness of his plea, the [trial court] did not have a duty to inquire further to ensure that [Petitioner's] plea of guilty was knowing and voluntary." Id. On May 30, 2013, the Court of Appeals denied Petitioner's request for leave to appeal. People v. Delarosa, 993 N.E.2d 1277 (N.Y. 2013).
On January 2, 2014, Petitioner filed the instant petition raising the following claims: (1) his guilty plea was unlawfully induced or not made voluntarily with understanding of the nature of the charges and consequences of the plea; (2) he was denied effective assistance of counsel; (3) his conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence that was favorable to Petitioner in violation of Brady v. Maryland; and (4) his conviction violated the Fifth Amendment right against self-incrimination in that it was obtained through the use of a coerced confession. (Pet. at 5-6.)
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, an application for a writ of habeas corpus by a person in custody pursuant to a state-court judgment may only be brought on the grounds that his custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner is required to show that the state-court decision, having been adjudicated on the merits, is either "contrary to, or involved an unreasonable application of, clearly established Federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Johnson v. Williams, 568 U.S. 289, 292 (2013).
"Under 28 U.S.C. § 2254(b), applicants for habeas relief serving state sentences must first exhaust all state remedies." Ramirez v. Att'y Gen. of N.Y., 280 F.3d 87, 94 (2d Cir. 2001). State remedies are deemed exhausted where a petitioner has "(i) presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and (ii) informed that court (and lower courts) about both the factual and legal bases for the federal claim." Id. Here, Petitioner has not satisfied these requirements with respect to any claim raised.
Petitioner seeks relief on the grounds of ineffective assistance of counsel, prosecutorial misconduct in violation of Brady, and the violation of his right against self-incrimination. However, Petitioner's appeal to the Appellate Division related only to the voluntariness of his plea. (See R. 14-29.) Because Petitioner failed to previously raise any of the other claims asserted here, those claims are not exhausted for the purposes of this petition.
Petitioner's claim regarding the voluntariness of his plea is likewise unexhausted. Although Petitioner previously appealed his conviction on the grounds that his plea was not voluntary, he did so on a different factual basis. Before the Appellate Division, Petitioner contended that his guilty plea was involuntary because the trial judge failed to inquire further into a potential justification defense. (R. 22-23.) Nowhere in the instant petition does Petitioner complain that the trial court failed to inquire as to justification. Instead, here, Petitioner argues that his guilty plea was involuntary because the trial judge acted "unethically." (Pet. at Ex. A.) Petitioner's entire argument on this claim is as follows:
(Id.)
The distinction between the factual underpinnings of the claim here versus the claim as it was asserted previously is fatal to the instant petition. That is, "[i]n order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (emphasis added). "Specifically, he must have set forth in state court all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim." Id. Such is the case here. Accordingly, Petitioner's claim regarding the voluntariness of his plea is unexhausted for the purpose of federal habeas review.
Although under certain circumstances the failure to exhaust may be excused, Petitioner has not demonstrated the applicability of any recognized exception to the exhaustion requirement. The Second Circuit has explained that, "[e]ven if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it is, as a result, then procedurally barred under state law." Ramirez, 280 F.3d at 94. Here, Petitioner's claim is procedurally barred as a result of being unexhausted. However, on habeas review, a claim that is otherwise procedurally barred must be dismissed on the merits unless a Petitioner can "show cause for the default and prejudice or demonstrate that failure to consider the claim will result in a miscarriage of justice." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001). In determining whether "cause" exists for the procedural default, the Supreme Court has directed district courts to limit their inquiry to whether "some external impediment" inhibited the petitioner from asserting his claim. Murray v. Carrier, 477 U.S. 478, 492 (1986).
Here, the petition is devoid of any cause for Petitioner's default. Because Petitioner has failed to show cause for the default, the Court need not reach the question of prejudice. See Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("Since a petitioner who has procedurally defaulted in state court must show cause and prejudice in order to obtain federal habeas review, we need not, in light of our conclusion that there was no showing of cause, reach the question of whether or not [petitioner] showed prejudice."). Likewise, Petitioner failed to offer evidence to support a conclusion that the dismissal of his petition would result in a miscarriage of justice. Indeed, on this record, the Court finds no basis to conclude that Petitioner is "actually innocent." See Aparicio, 269 F.3d at 90 ("For a procedurally defaulted claim to escape [dismissal], the petitioner must . . . demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent)."). The petition for writ of habeas corpus is denied.
For the foregoing reasons, Petitioner's motion for a writ of habeas corpus is DENIED. Because Petitioner has not made a substantial showing of the denial of any constitutional right, no certificate of appealability will issue. See 28 U.S.C. § 2253(c); see also Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal in forma pauperis from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to close the case.
SO ORDERED:
